Justice Catherine DiDomenico
Husband sought an order declaring that his disability benefits payable by Social Security and the Veterans Administration (VA) was separate property, thus were not to be considered for equitable distribution or maintenance purposes. Wife opposed the application on justiciability grounds, or alternatively alleging husband’s benefits should be considered for maintenance purposes. The court found as husband had a stake in the outcome of the motion as his disability payments were at issue in the underlying divorce action, it would consider the application. It stated that while disability benefits obtained from other sources could be considered for maintenance purposes, veteran’s disability payments were precluded from consideration, noting in a divorce action, a court could not order allocation of veteran’s disability benefits absent a contractual agreement between the parties. Thus, the court granted husband’s motion to the extent that his disability benefits could not be included in the marital estate at trial for either equitable distribution or maintenance purposes. Yet, while social security benefits were not subject to equitable distribution, they may be considered when determining a payor spouse’s ability to pay maintenance.
